CHAPTER IVArmy-McCarthy—A Claim of Secrecy Unlimited
On the morning of May 17, 1954, the klieg-lighted Senate Caucus Room was jammed with spectators. Near the end of the huge table at the front of the room, Senator Joseph R. McCarthy hunched over a microphone, reviling the Eisenhower administration. He claimed that high officials of the Eisenhower administration were arbitrarily silencing witnesses from the executive branch, and in doing so were preventing him from defending himself.
It was the eighteenth day of the already famous Army-McCarthy hearings, an exciting political drama that held the attention of an estimated 20 million television viewers. Over the weeks the Senator had sneered at Army Secretary Robert T. Stevens and anyone else who disagreed with him. His smirking disrespect and heavy-handed humor had already cooled the enthusiasm of many of his followers. Some had even turned against him. Senator McCarthy, in short, had created the worst possible climate in which to make any appeal to fair play or decency. And yet the Wisconsin Republican was now making such an appeal and would soon be receiving some sympathetic comment from Democratic as well as Republican senators.
The point at issue was simple: Should Army Counsel John Adams be required to testify as to conversations at a meeting at the Justice Department on January 21, 1954? Adams had already testified to being present on that day with AttorneyGeneral Herbert Brownell, Jr., Deputy Attorney General William P. Rogers, Presidential Assistant Sherman Adams, White House Administrative Assistant Gerald D. Morgan, and United Nations Ambassador Henry Cabot Lodge. The meeting had been called to try to find ways to curb Senator McCarthy’s free-wheeling investigation of the loyalty-security program in the Defense Department.
When, following this testimony on May 14, the Senate committee members asked for information about the conversations, Adams balked. He said that “instructions of the Executive Branch” barred him from telling of the conversations at that key meeting on January 21. Committee members were concerned. How could they obtain the evidence necessary to draw a conclusion on the hearings if they were to be barred from all “high-level discussions of the Executive Branch”?
The Army-McCarthy hearings centered on charges and countercharges involving Army Secretary Stevens, John G. Adams, Defense Department General Counsel H. Struve Hensel, Senator Joseph McCarthy, Roy M. Cohn, and Francis P. Carr. Cohn was chief counsel for McCarthy’s Permanent Investigating Subcommittee, and Carr was chief investigator.
The Department of the Army alleged that Senator McCarthy, Cohn, and Carr had improperly used the power of the McCarthy subcommittee to obtain preferential treatment for Cohn’s pal, Private G. David Schine. It was contended that the tough and aggressive little Cohn had tried to intimidate the Army and Defense officials to get Schine a commission or a special assignment as an assistant to the Secretary of the Army, or a post in the Central Intelligence Agency. It was also charged that Cohn had suggested that Private Schine might be given a special assignment to work with the McCarthy committee. In fact, Schine had been drafted and after a short time on regular Army duty waspermitted to leave his regular duties to work with Cohn on the McCarthy committee investigations.
On the other side, Army Secretary Stevens contended that McCarthy and Cohn had launched a vindictive probe of the Army security programs in reprisal against those who had not co-operated to grant special treatment to Private Schine.
Senator McCarthy countercharged that the Army tried to blackmail his investigating subcommittee into dropping its investigation of the Army loyalty-security setup by threatening to circulate an embarrassing report about Cohn and Schine. The Wisconsin Senator declared that his investigation of the Army loyalty-security program was fully justified, and reiterated his charge that Major Irving Peress had been promoted by the Army despite his record as a “subversive.” McCarthy did not deny that he had criticized Brigadier General Ralph Zwicker as a “disgrace” in uniform. And he renewed his assault on the Fort Monmouth Missile Research Center as a place honeycombed with “Reds.”
It was easy to understand why the Eisenhower administration held the January 21 meeting at the Justice Department to decide how to handle Senator McCarthy. However, it was not so easy to understand why, after testifying there had been such a meeting, Army Counsel Adams refused to tell what was said.
Senator Stuart Symington, the handsome Missouri Democrat, was amazed that testimony would be barred on such a crucial meeting. He declared that testimony on the January 21 meeting was essential to determine the responsibility for the Defense Department’s attempt to stop Senator Joseph McCarthy.
“This was a high-level discussion of the executive department, and this witness [Adams] has been instructed not to testify as to the interchange of views of people at that high-level meeting,” explained Joseph N. Welch, the gentle-voicedBoston lawyer who was serving as a special counsel for the Army.
“Does that mean we are going to get the information about low-level discussions but not about high-level discussions?” Senator Symington asked.
“That is only, sir, what I have been informed,” Welch replied and then carefully made it clear he was not passing on the right or wrong of the policy. “It isn’t a point of what I like. It is a point of what the witness has been instructed.”
Senator Henry M. Jackson, the Washington Democrat, was no McCarthy supporter, but he too was nettled by the instructions given Adams by Deputy Defense Secretary Robert B. Anderson. Jackson held that if the Defense Department had any right to refuse to testify on high-level conversations, then it had waived that right when Adams told of the January 21 meeting and the participants.
“I think that maybe this testimony may be embarrassing to the Administration, and I do not think that because it is embarrassing to the Administration and favorable to Senator McCarthy, that it ought to be deleted,” Senator Jackson declared.
“I think this committee should find out now,” Jackson continued, “whether it [the Administration policy] covers just this conversation or whether it covers all conversations that went on between the various officials within the Executive Branch of Government ... [if] we are going to be foreclosed here immediately from asking any further questions relating to conversations between officials within the Executive Branch. Heretofore, those conversations have been coming in when they have been favorable. Now that they are unfavorable [to the Administration], are they to be excluded?”
The unfairness of allowing favorable testimony by a witness, and then arbitrarily cutting off unfavorable testimony was apparent to many observers, even through the steam offeeling that surrounded the Army-McCarthy hearings. To justify such arbitrary secrecy, the Defense Department needed all the prestige it could summon.
The answer to the problem, it was decided, would be a letter from President Dwight D. Eisenhower to Defense Secretary Charles E. Wilson. It had to be a letter of high tone in which the popular President Eisenhower could convince the public that some great principle was at stake. It had to be general enough to avoid saying just why John Adams couldn’t testify, but specific enough to give the impression that the security of the nation and the foundations of the Constitution were in danger if John Adams were forced to talk. The letter drafted between Friday, May 14, and Monday, May 17, carried the full impact of the prestige of a highly popular President, but it obscured temporarily a sweeping assumption of executive power to arbitrarily withhold information (see Appendix A).
On Monday morning, May 17, John Adams filed the Eisenhower letter with the Army-McCarthy committee and a broad new doctrine of “executive privilege” was born. The glowing phrases about a “proper separation of powers between the Executive and Legislative Branches of the Government,” misled the public and a good many newspaper editorial writers and columnists, even though it did not fool all the members of the Army-McCarthy committee.
President Eisenhower’s May 17, 1954, letter stated:
“Because it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regarding theinquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions. This principle must be maintained regardless of who would benefit by such disclosure.
“I direct this action so as to maintain the proper separation of powers between the Executive and Legislative Branches of the Government in accordance with my responsibilities under the Constitution. This separation is vital to preclude the exercise of arbitrary power by any branch of Government.”
The Eisenhower letter also stated that “throughout our history the President has withheld information whenever he found that what was sought was confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation.” The letter gave the impression that from George Washington down, a number of Presidents had taken action analogous to the silencing of John Adams.
How was the “public interest or the safety of the Nation” to be jeopardized by Army Counsel John Adams’ telling of a meeting on strategy to curb Senator McCarthy’s investigations?
If this Eisenhower letter was “to preclude the exercise of arbitrary power by any branch of Government,” then who was to stop the executive branch from such arbitrary silencing of witnesses?
Were the Army-McCarthy investigating committee and other committees of Congress to be barred from obtaining information on all “conversations or communications, or any documents or reproductions, concerning advice” within the executive branch?
These were the questions that immediately arose in the minds of Senator Jackson, Senator Symington, and Senator John L. McClellan, the Arkansas Democrat. Senator Everett Dirksen, the honey-voiced Illinois Republican, and KarlMundt, the South Dakota Republican who was serving as chairman, also expressed some concern, although privately.
Stern-faced Senator McClellan was not awed by the popularity of President Eisenhower or by the fact that Senator McCarthy was a highly unpopular figure at that point. He declared that if the barrier to any testimony on the January 21 meeting prevailed, then it would be impossible to establish whether John Adams, Army Secretary Stevens, or some higher officials were responsible for directing actions complained of by Senator McCarthy, Roy Cohn, and Private Schine.
“If the committee is going to be left in a dilemma of not knowing whether the Secretary [Stevens] is responsible for the action taken after that date [January 21], or whether the responsibility is at a higher level, then we will never be able to completely discharge our responsibility in this proceeding,” Senator McClellan said.
Senator Jackson expressed the view that the secrecy policy left the committee “in a dilemma of passing on testimony that is incomplete. I think ... that the Executive Branch is doing a great injustice to this committee and to all of the principals in this controversy by exercising the power which the President has, very late in the proceedings.”
There was no question that President Eisenhower’s letter had stalled the hearings at a crucial moment. If witnesses could not testify on an essential point, then there was little more that could be learned.
“I must admit that I am somewhat at a loss as to know what to do at the moment,” Senator McCarthy said. “One of the subjects of this inquiry is to find out who was responsible for succeeding in calling off the hearing of Communist infiltration in Government. That the hearing was called off, no one can question.”
McCarthy continued: “At this point, I find out there is no way of ever getting at the truth, because we do find that thecharges were conceived, instigated, at a meeting [of January 21] which was testified to by Mr. Adams.
“I don’t think the President is responsible for this,” the Wisconsin Republican said in expressing his views that others had conceived the idea of silencing Adams and had merely obtained President Eisenhower’s signature to accomplish their purpose. “I don’t think his judgment is that bad.”
“There is no reason why anyone should be afraid of the facts, of the truth, that came out of that meeting,” Senator McCarthy thundered. “It is a very important meeting. It doesn’t have to do with security matters. It doesn’t have to do with national security. It merely has to do with why these charges were filed.
“The question is ... how far can the President go? Who all can he order not to testify? If he can order the Ambassador to the U. N. [Henry Cabot Lodge] not to testify about something having nothing to do with the U. N., but a deliberate smear against my staff, then ... any President can, by an executive order, keep the facts from the American people.”
Senator McCarthy brought up the 1952 campaign in which government secrecy had been a key issue: “I do think that someone ... should contact the President immediately and point out to him ... that he and I and many of us campaigned and promised the American people that if they would remove our Democrat friends from control of the Government, then we would no longer engage in Government by secrecy, whitewash and cover-up.”
It was a pathetic plea from a man who by now had completely destroyed his public image by his own brutal performance. His voice was raucous. His heavy beard gave him a rough, almost uncouth appearance despite his efforts to modify it by shaving during the noon recess.
Still, he hammered on. “I think that these facts should bebrought to the President because the American people will not stand for such as this, Mr. Chairman. They will not stand for a cover-up halfway through a hearing.”
Seldom had there been more right on the side of McCarthy, but seldom had there been fewer people on his side. Many people who at first had been inclined to approve Joe McCarthy as “doing some good against the Communists,” had been antagonized by his television image. Many editorial pages of a press that was normally much more objective had developed an attitude that anything that is bad for Joe McCarthy is good for the country.
Public sentiment against him was so strong that I did not believe it could have been changed to his favor—even if the committee had succeeded in eliciting testimony on the January 21, 1954, meeting and no matter how embarrassing it might have been to the Eisenhower administration.
There remained, nevertheless, the possibility that the Eisenhower letter could be used again. I was shocked at the wording of it. On the face of it, it seemed to extend the claim of “executive privilege” to prohibit Congress the access toanyrecords or testimony that might involve communications within the executive branch. The letter was a directive with regard to excluding testimony in one hearing—the Army-McCarthy hearing. However, it was certainly broad enough that the Defense Department could use it to block any investigation.
Moreover, if an administration could successfully block any probe of high-level discussions in the Defense establishment, why couldn’t it use that same “executive privilege” to block any investigation in any other executive agency? The thought disturbed me. The Teapot Dome scandals of the Harding administration could have been buried if those officials had applied even the mildest interpretation of “executive privilege” set down by President Eisenhower in the May 17 letter.
If cabinet officers and subordinate officials had refused to testify about the Teapot Dome affair on grounds of “confidential executive communications,” it could have stifled the entire investigation by Senator Thomas Walsh, the Montana Democrat. Under the “executive privilege” theory, Secretary of Navy Edwin Denby and Secretary of Interior Albert B. Fall could have refused to give testimony or produce records of events leading up to the leasing of the Teapot Dome oil reserves. Fall’s crimes might never have been uncovered, and he would have avoided the exposure and conviction.
Similarly, the tax scandals of the Truman administration could have been buried by claiming that all papers except those involving final decisions were “confidential executive communications.” It had been vital to learn the nature of advice and recommendations of both high-level and low-level officials on settlements of huge tax cases. Attorney General J. Howard McGrath could have claimed that his conversations with T. Lamar Caudle, the Assistant Attorney General in charge of the Tax Division, were “confidential executive business.”
Caudle and White House Aide Matthew Connelly could have claimed that their communications were “confidential executive business.” As it was, the Caudle-Connelly communications were actually used as the basis of criminal charges on which Caudle and Connelly were convicted and sent to prison. A number of other officials of the Internal Revenue Service were convicted on charges arising out of revelation of the “advice and recommendations” they gave that were part of a huge tax “fix” operation.
I talked to several members of the Army-McCarthy committee, and with several of my newspaper colleagues, Democratic and Republican senators alike were disturbed at this seemingly limitless claim for “executive privilege.” They hoped that the Eisenhower administration had written the letter for just this one hearing and had used the broadlanguage merely to avoid an impression that Senator McCarthy was being singled out for special treatment. Among the newspaper reporters the attitude was that Joe McCarthy was getting about what he had coming to him; there was little concern over what use might be made of the precedent in other investigations.
Many of the reporters had been misled by a memorandum that accompanied the Eisenhower letter. It said, in effect, that President Eisenhower was doing no more than George Washington and many other Presidents had done. By invoking such names as George Washington and Thomas Jefferson, the memorandum made it possible to pass off the Eisenhower letter as a mere “clarification” of an old and settled principle. A close reading of “the precedents” disclosed in fact that President Washington actuallyopposedwithholding information from Congress. (See Chapter I.) He once refused to deliver treaty papers to the House but only because the Senate, not the House, had jurisdiction to ratify treaties.
President Jefferson had taken papers into his personal custody in connection with the Aaron Burr case, and thus defied the federal court by declaring that the only way the papers could be reached would be by impeaching him. He was right. The law is quite settled on this point; neither the courts nor the Congress can compel the President to testify or produce personal letters, papers, and memorandums. President Jefferson eventually did send the documents subpoenaed by Chief Justice Marshall. But even if Jefferson had refused to produce these documents, it would hardly seem to be an adequate reason for allowing a lawyer for the Army Department to refuse to testify about a meeting with a cabinet officer and several White House aides.
The late Ed Milne, of the Washington Bureau of the ProvidenceJournal, shared my concern. He and I each wrote stories demonstrating how the Truman tax scandals and theHarding Teapot Dome scandals could have been hidden forever if “executive privilege” had barred testimony of all high-level conversations.
We also reminded our readers of the Republican reaction to the ducking and evasion of the Truman administration between 1946 and 1952. Senator Homer Ferguson, the Michigan Republican, was chairman of one of the committees that investigated the Truman administration in the late 1940s. His chief counsel at the time was William P. Rogers, who later became Eisenhower’s Attorney General and a chief advocate of the ultimate in executive secrecy. Only a year before Eisenhower’s election (September 27, 1951), Ferguson spoke out bluntly on the issue of suppression of facts by the executive departments: “It may be said that this practice of suppressing information in the executive department got its big start back in March, 1948. The Senator from Michigan [himself] was then chairman of the Senate Investigations Subcommittee and was investigating things that could be embarrassing to the administration. The subject of the investigation was the operation of the Government’s loyalty program, revolving around the case of William Remington.”
Senator Ferguson continued: “An executive order was issued, placing certain files under the direct and exclusive jurisdiction of the President. On occasion files were taken to the White House in order that they could not be subpoenaed. In the course of our hearings, an admiral was able to tell the Senator from Michigan, off the record, the fact that because of an order by the President of the United States he was not permitted to testify.”
As I have shown (in Chapter III), the Truman administration did try to hide embarrassing facts from Congress. President Truman issued an executive order placing certain personnel files under a secrecy blanket, and on some occasions he ordered files delivered to his personal custody at the White House so they could not be reached by subpoena.His administration stalled investigations of flagrant crimes for months. But President Truman never asserted any constitutional right by which all high-level officials could claim an “executive privilege” to refuse to testify or produce records.
The persistent, hard-hitting inquiries of Committee Counsel William P. Rogers made the Truman administration so frantic in 1948 and 1949 that a staff lawyer in the Justice Department was asked to prepare a memorandum on the precedents set by earlier Presidents who had withheld information from Congress. However, that memorandum was regarded as too insubstantial to use. The Truman administration relied instead on ducking and dodging to avoid embarrassment. It sensed correctly that the press and the public would have been outraged if it had tried to pull down a total secrecy curtain in the midst of investigations of the five percenters, the influence peddlers, and the loyalty cases.
What Truman would not do, however, the highly popular President Eisenhower did do. Ironically, his May 17 letter caused hardly a ripple of criticism. On the contrary, most editorial pages praised President Eisenhower for expressing some fine new theory on the U. S. Constitution or wrote off the letter as an historically unimportant, one-shot claim of secrecy.
I called one editor friend the day after such an approving editorial appeared, and commented that the Eisenhower doctrine of “executive privilege” could bar Congress from practically any executive papers containing “opinions, advice or recommendations.”
“This will set the ‘Freedom of Information’ cause back fifty years, if it is not criticized and stopped now,” I said.
My editor friend said he thought that there might have been some loyalty file discussed at the January 21 meeting, and that this would be a justification for refusing testimony.
I told him that no one had claimed that loyalty files were discussed, and that if this had been the reason for the secrecythen it should have been stated. Also, I pointed out that while discussion of a loyalty file might give some justifications for limiting testimony, the limitation should only cover that subject and not the whole meeting.
The editor agreed with me that the broad language of the Eisenhower letter constituted a dangerous precedent. But he didn’t believe that any administration would ever try to invoke the total arbitrary “executive privilege.”
Just how wrong events would prove him to be was not then easy to predict. Indeed, the whole story of the Army-McCarthy hearings had by this time taken second news billing to the United States Supreme Court ruling on school segregation. The unanimous segregation decision came out on May 17, 1954—the same date as the Eisenhower letter to Wilson. That segregation decision now dominated discussions of constitutional law. And the few persons who did stop to think about the inherent threat in the broad use of secrecy could hardly get emotional about it—as long as the only victims appeared to be Senator McCarthy and his little knot of followers.